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In a baffling decision, the HCJ refused to review on its merit HaMoked’s petition against the Minister of Interior’s decision not to upgrade the status of a Palestinian woman living in Israel for many years in the framework of the family unification procedure: HaMoked must now turn to the Appeals Tribunal (although it has no jurisdiction on the matter)

On April 11, 2016, following HaMoked’s petitions to the High Court of Justice (HCJ), the Minister of Interior decided to give temporary residency status (which also affords social security rights) to Palestinian spouses of Israeli residents who have been living in the country for many years solely pursuant to military stay-permits. This population had no hope of receiving upgraded status in the country nor social security rights due to the Citizenship and Entry into Israel Law (Temporary Order). The decision applies to those who had filed an application for family unification no later than the end of 2003 and subject to the threshold conditions, including proof of “center of life” in Israel and the absence of a security or criminal disqualification. It was also decided that children of a parent who would receive status under this decision, would be entitled to status as well, provided they were born after January 1, 1998.

The Minster’s decision applied to some 2,000 spouses out of some 9,900 on whose behalf HaMoked had petitioned the Court. As of September 2017, of this limited group of people – defined, as stated, based solely on their date of applying for family unification – 1,573 people received temporary Israeli residency status, while 418 did not due to a security or criminal disqualification or for failing to meet some other criterion.

On March 18, 2018, the HCJ rejected out of hand HaMoked’s petition (HCJ 6079/17) on behalf of one of those denied an upgrade, as well as a similar petition filed by a private attorney. HaMoked’s petition concerned a Palestinian spouse of an East Jerusalem resident, to whom the Minister of Interior had refused to grant a status upgrade based on the claim that security reasons precluded this, and she therefore did not meet the threshold conditions set in the Minister’s decision.

In the judgment, the court dismissed the petitioners’ claim that judicial review of the Minister’s decisions in such cases was within the purview of the HCJ under Section 3A1 of the Entry into Israel Law – pursuant to which decisions on upgrading status are made. Instead, the HCJ adopted the state’s position that the petition must be dismissed outright because there was an alternative remedy in the form of filing an appeal to the Appeals Tribunal – although this matter is outside the Tribunal’s jurisdiction.

In its reasoning, the court affirmed that “indeed reviewing a decision under Section 3A1 of the Temporary Order Law is within the jurisdiction of the HCJ”. However, the court took the view that this jurisdiction existed only with regards to “a challenge of the policy decision itself or one of its conditions”, but not “a challenge of a particular decision relating to meeting the preliminary conditions for the policy’s applicability (center of life, validity of the relationship and absence of security and criminal disqualifications)… a person who does not meet the threshold conditions – their matter does not come within the scope of the new policy… and in any event is not a matter of a decision under Section 3A1”.

It should be stressed that this does not mean the termination of the family unification procedure of the woman or others in her position, as might be implied by the HCJ’s finding regarding failure to meet the threshold conditions. Such persons’ approved requests remain in place, and they are likely to continue receiving stay-permits as before. All that has been denied them is the acquisition of temporary status in the framework of the Minister’s 2016 decision. It should also be noted that Palestinians can only receive a status upgrade pursuant to provisions of Section 3A1 of the Law. Hence the bafflement arising from the judgment.

As the HCJ recourse has been blocked – based on the distinction established in the judgement – HaMoked will file an appeal to the Appeals Tribunal on behalf of the woman. Thus, another hurdle has been added to the obstacle course Palestinians must navigate in their efforts to live normal lives with their families in East Jerusalem. (02) 627 1698   (02) 627 6317

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